Citation Nr: 0334848
Decision Date: 12/12/03 Archive Date: 12/24/03
DOCKET NO. 03-00 839 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for panic/anxiety
disorder.
2. Entitlement to service connection for cold sores (claimed
as oral ulcers).
3. Entitlement to service connection for a low back
disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from July 1984 to July 1987.
Initially, the Board of Veterans' Appeals (Board) notes that
while it granted the veteran's motion to advance his appeal
on the docket, due to recent changes in applicable law and
regulations, it is not currently able render a final decision
with respect to any of the issues that are ready for
appellate review.
REMAND
During the pendency of the appellant's claims on appeal, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), which substantially modified the
circumstances under which the Department of Veterans Affairs
(VA)'s duty to notify and assist claimants applies, and how
that duty is to be discharged. See Public Law No. 106-175
(2000) (now codified at 38 U.S.C. § 5100-5103A, 5106-7 (West
2002)).
On May 1, 2003, however, the United States Court of Appeals
for the Federal Circuit (Federal Circuit) invalidated the
Board's new duty-to-assist regulations as codified at
38 C.F.R. § 19(a)(2) and (a)(2)(ii) (2002). See Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003). That decision emphasized the Board's
status as "primarily an appellate tribunal," and held that
38 C.F.R. § 19.9(a)(2) was invalid because, in conjunction
with the amended regulation codified at 38 C.F.R. § 20.1304
(2002), it allowed the Board to consider additional evidence
without having to remand the case to the Agency of Original
Jurisdiction (regional office (RO)) for initial consideration
and without having to obtain the appellant's waiver.
Here, the Board's review of the claims file reflects that the
Board received relevant additional evidence in October 2003
that was not previously considered by the RO, and that the
claims folder does not contain a waiver of the RO's initial
consideration of that additional evidence. Therefore,
consistent with the applicable case law, the Board must
remand the veteran's claims to the RO for a review as to
whether all evidence needed to consider his claims has been
obtained (and to conduct any additional VCAA notice and
development as required), and for the issuance of a
supplemental statement of the case (SSOC) regarding all
evidence received since the June 2003 supplemental statement
of the case.
In addition, in a letter dated in December 2000, the RO made
an effort to inform the veteran of the evidence needed to
substantiate his claims for service connection, and the
relative obligations of the veteran and VA in developing that
evidence. See Quatucco v. Prinicipi, 16 Vet. App. 183, 187
(2002). However, the December 2000 letter informed the
veteran that the requested information and/or evidence should
"preferably" be submitted within 60 days of the notice.
In a decision promulgated on September 22, 2003, the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) (2003) as inconsistent with 38
U.S.C.A. § 5103(b)(1) (West 2002). See Paralyzed Veterans of
America v. Secretary of Veterans Affairs, No. 02-7007, -7008,
-7009, -7010 (Fed. Cir. Sept. 22, 2003). The Federal Circuit
made a conclusion similar to the one reached in Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339, 1348 (Fed. Cir. 2003) (reviewing a related Board
regulation, 38 C.F.R. § 19.9 (2003)). The Federal Circuit
found that the 30-day period provided in § 3.159(b)(1) to
respond to a VCAA notice is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. Therefore,
since this case is being remanded for additional development,
the RO must take this opportunity to inform the veteran that
regardless of the information previously provided, a full
year is allowed to respond to a VCAA notice.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The claims file should be reviewed to
ensure that any notification and
development action required by the VCAA
and its implementing regulations, court
decisions, and VA directives is
completed.
2. Steps should be taken to obtain the
records pertinent to the veteran's claim
for SSA disability benefits, including
the medical records relied upon
concerning the claim.
3. The veteran should be afforded an
appropriate VA examination to determine
the etiology of any current cold sores.
The claims folder and a copy of this
remand must be made available to and
reviewed by the examiner prior to the
completion of the examination report.
All relevant studies should be conducted
and all findings must be reported in
detail. The examiner should be requested
to state whether it is at least as likely
as not that any current disability
associated with cold sores is related to
service.
4. The veteran should be afforded an
appropriate VA examination to determine
the etiology of any current panic/anxiety
disorder. The claims folder and a copy
of this remand must be made available to
and reviewed by the examiner prior to the
completion of the examination report.
All relevant studies should be conducted
and all findings must be reported in
detail. The examiner should be requested
to state whether it is at least as likely
as not that any psychiatric disorder is
related to service.
5. The veteran should be afforded an
appropriate VA examination to determine
the etiology of any current low back
disorder. The claims folder and a copy
of this remand must be made available to
and reviewed by the examiner prior to the
completion of the examination report.
All relevant studies should be conducted
and all findings must be reported in
detail. The examiner should be requested
to state whether it is at least as likely
as not that any current low back disorder
is related to service.
6. After pursuing any additional
development deemed appropriate in
addition to that requested above, the
claim should be readjudicated. If any
benefit sought on appeal remains denied,
the appellant and his representative
should be provided a supplemental
statement of the case and given the
opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (previously known as the United States Court of
Appeals for Veterans Claims prior to March 1, 1999, hereafter
"the Court") for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, Veterans' Benefits Administration (VBA)'s
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.43 and
38.02.
_________________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).